The plaintiff filed suit for specific performance of contract dated .19-12-1997 executed between the plaintiff and defendant No,
1. Under the agreement the plaintiff had undertaken to clear the liabilities of the defendant No,1 towards the M.C.B . defendant No,3. The defendant No,3 due to default on the part of the defendant No,1 tiled suit for sale of mortgaged property and obtained the decree. During the sale proceedings, the plaintiff filed application under section 12(2), C.P.C. for setting aside the judgment and decree, which was disposed of by order dated 5-10-2001, whereby the plaintiff was allowed 15 days time to pay the liabilities and get the mortgage redemption but failed to do so. Consequently, the mortgaged property subject-matter of the present suit, has been sold by the Official Assignee. The relief for specific performance of contract =is an equitable relief.
The party seeking such relief has to show his willingness to perform his part of contract. The plaintiff got the opportunity but failed to show his bona fide. Today I further asked Mr. Asghar Farooqui, if the plaintiff is ready and willing to deposit the sale consideration in the suit. He shows inability of the plaintiff on the ground that the property has already changed. When the party is not ready and willing to perform his part of contract, cannot ask for the specific performance of contract by the other party. Consequently, the plaintiff is not entitled for the discretionary relief, therefore, the suit is dismissed, however, with no order as to costs.
Civil Miscellaneous Application No,1879 of 2002 has become infructuous, which is dismissed.